LESSONS FOR REGULATING CAMPAIGNING ON SOCIAL MEDIA Adapting and tailoring regulation to the realities of online campaigning extends to a consideration of appropriate remedies. In a more recent case in France, a mayoral candidate was alleged to have violated the electoral silence law after posting a photo on Facebook that showed him delivering a speech at an official ceremony, reflecting his mayoral duties. 10 In addition, a deputy mayor was also alleged to have posted electoral propaganda on Facebook in violation of the silence period by telling voters to “choose experience over adventure,” an implied appeal to vote for the incumbent mayor. The Constitutional Council ruled that the messages disseminated on Facebook did not have a private character and were intended to reach a wider audience. In addition, the Council found that such posts were likely to alter the election results and ordered the cancellation of the 2017 local elections. While the Council did not provide much detail about the factors that were considered to determine that the election results were likely impacted, given that the margin of victory in the municipal election was just seven votes, the burden may not have been particularly high. A separate French case regarding political advertising of a candidate list on Facebook sheds light on some potential factors that could be examined by the court. 11 In this case, the Council found that while it was unlawful political advertising it did not alone violate the integrity of the polls due to the low impact of the publication (limited views on Facebook) and the non-controversial nature of the post. 12 Regardless of the factors used to make the determination that the violation has impacted the results, it should be emphasized that annulment is considered an extreme remedy with a high risk of political manipulation. 13 In a similar case in Moldova, the Supreme Court upheld a decision to annul the 2018 mayoral election in Chisinau due to violations of the electoral silence period on election day. 14 In this case, both parties were alleged to have violated the campaign silence period, including by posting messages encouraging voters to go to the polls. The lower court found that these irregularities were sufficient to have influenced the results of the elections, and therefore the results should be invalidated – a decision that was ultimately upheld. This assessment was based primarily on the finding that the social media posts reached tens of thousands of individuals, more than the margin of victory, and that the voter turnout was substantially higher than in previous rounds and elections. The decision to annul the results of the election was considered by many to be disproportionate to the offense and controversial because the secondplace candidate had strong ties to the ruling party. 15 This highlights the importance of the consideration of proportional remedies for online campaign violations, including standard criteria or methods of evaluating the impact of violations 10 Harle v. France (Décision n° 2017-5092 AN) (Dec. 18, 2017) (France), available at https://electionjudgments.org/en/entity/k0vzxtsspak?page=1. 11 Conseil d'État (CE), 6ème chambre, 28 May 2021, N° 445567 (unpublished in Lebon collection) (France), available at https://electionjudgments.org/en/entity/fgurl25x98d. 12 Id. 13 See, Chad Vickery, David Ennis, Katherine Ellena & Alyssa Kaiser, When Are Elections Good Enough? Validating or Annulling Election Results, IFES (October 2018). 14 Appeals declared by the Political Party "Dignity and Truth Platform" and the electoral candidate Andrei Năstase, by Political Party "Party of Socialists of the Republic of Moldova" and by the Electoral Council of the Chisinau Municipal Electoral District No. 1, (Nr. 3ra-998/18) (June 25, 2018) (Moldova), available at https://electionjudgments.org/en/entity/5hmve441cp. 15 See, Radio Free Europe/Radio Liberty, Moldovans Protest Nullification Of Chisinau's Mayoral Election Results (June 24, 2018), available at https://www.rferl.org/a/moldovans-protest-nullification-chisinau-mayoral-election/29316498.html; Radio Free Europe/Radio Liberty, Moldovan Supreme Court Upholds Decision To Void Chisinau Mayoral Election Amid Protests (June 25, 2018), available at https://www.rferl.org/a/moldovansupreme-court-upholds-decision-chisinau-mayoral-election-voided-protests/29318960.html. 5